State v. Brown

192

Submitted August 9, affirmed October 16, 2019

STATE OF OREGON,

Plaintiff-Respondent,

v.

TONY LAMAR BROWN,

Defendant-Appellant.

Multnomah County Circuit Court

16CR55091, 16CR62746;

A165931 (Control), A166092

452 P3d 482

Defendant appeals from a judgment of conviction for first-degree robbery,

first-degree burglary, unlawful use of a weapon, strangulation, second-degree

kidnapping, and menacing. He assigns error to the trial court’s denial of his

motion in limine, as well as his midtrial objection before the witnesses testified,

to exclude evidence that he barricaded himself in the victim’s house and that

police forcibly entered the house to arrest him after a nine-hour standoff. He also

assigns error to the trial court’s denial of his subsequent objection under OEC

403 and motion for mistrial, both based on the evidence of the standoff being

unfairly prejudicial. Held: (1) The trial court’s denials of defendant’s motion in

limine and midtrial objection to exclude evidence of the standoff were prelimi-

nary and not appealable. (2) The trial court did not abuse its discretion in reject-

ing defendant’s pretrial proposal to limit evidence of the standoff, because the

nature and extent of the actions that defendant took to avoid capture bore on the

extent to which the jury could infer his guilty knowledge. (3) Defendant’s OEC

403 objection and motion for mistrial were untimely, as defendant waited until

long after the witnesses had finished their testimony and been excused before

objecting to the specific testimony that they offered.

Affirmed.

Leslie G. Bottomly, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Erica Herb, Deputy Public Defender, Office of

Public Defense Services, filed the brief for appellant. On the

supplemental brief were Ernest G. Lannet and Andrew D.

Robinson, Deputy Public Defender, Office of Public Defense

Services.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Christopher Page, Assistant Attorney

General, filed the briefs for respondent.

Cite as 300 Or App 192 (2019) 193

Before Lagesen, Presiding Judge, and Powers, Judge, and

Kistler, Senior Judge.

KISTLER, S. J.

Affirmed.

194 State v. Brown

KISTLER, S. J.

Defendant appeals from a judgment of conviction

for first-degree robbery, first-degree burglary, unlawful use

of a weapon, strangulation, second-degree kidnapping, and

menacing. He raises four assignments of error in his open-

ing brief and three additional assignments of error in a sup-

plemental brief. We limit our discussion to the second and

third assignments of error in his opening brief and affirm

the trial court’s judgment.1

The victim and defendant had been in a relation-

ship for some time. In 2016, the victim sought to end the

relationship, but defendant persisted. He repeatedly drove

by the victim’s home, telephoned her, and sent her text mes-

sages. On three occasions during August and September,

defendant took actions that resulted in the convictions he

now challenges on appeal. We describe those actions briefly

before turning to the trial court’s evidentiary rulings that

are the subject of defendant’s second and third assignments

of error.

On August 9, 2016, the victim was at home sleeping

on a couch. She woke to find defendant putting a plastic bag

over her head. After struggling with defendant, she was able

to get the bag off her head. However, once she did so, defen-

dant put a gun initially to her head and then in her mouth.

He accused her of seeing other men and told her that he was

going to kill her. He said that he was going to put her body

in the plastic bag and bury her where no one would find her.

At first, the victim told defendant that she was not seeing

anyone. Later, she “started agreeing to what he was saying,

because[, as the victim put it,] the truth wasn’t working.”

When she began “admitting” his accusations, defendant

calmed down. He left the living room briefly, which allowed

the victim to text her adult daughter to call the police.

Defendant became suspicious that the victim had contacted

the police and fled from the house when officers knocked on

the front door.

1

We affirm without discussion defendant’s remaining assignments of error

in his opening brief. We reject on the merits the three assignments of error relat-

ing to the nonunanimous jury verdict in this case that defendant raises in his

supplemental brief.

Cite as 300 Or App 192 (2019) 195

After that attack, the victim stayed in her mother’s

house because she “was too scared to go back” to her own

home. However, on August 22, the victim went back to

her home with four members of her family. She wanted to

gather some clothes and secure the house to keep defendant

from getting inside. When they were inside the home, they

“smell[ed] smoke. It just didn’t seem right. It felt like he * * *

might have just been there.” They looked for defendant but

did not find him. Then, the victim’s daughter went over to

a couch by the window. When she did so, the couch moved,

defendant jumped out from behind the couch, brandished a

gun, and threatened to kill the victim. When the victim’s

uncle and her daughter confronted defendant, he ran out the

back of the house.

After those two encounters, defendant continued to

telephone the victim, and the victim continued to talk with

him. During one of their calls, he offered to meet her in

a public place to help her with her car. He told her that

another person would be there to calm any fears she might

have. Initially, the victim resisted. Later, she relented. On

September 7, the victim drove her car to a public parking lot

where she met defendant. The third person was not there.

Defendant got in the backseat of the victim’s car and told

her to drive to a city park. When the victim’s cell phone

rang, defendant told her not to answer it, put a knife to her

throat, and once more accused her of seeing other men.

When they got to the park, the victim began driving

her car into parked cars, hoping that someone would call

the police. During the ensuing confusion, the victim tried to

escape. Defendant, however, managed to get into the front

seat and grab the victim’s braids before she could get com-

pletely out of the car. He drove off, holding the victim by her

braids and dragging her along the road for several feet until

her braids broke.

That night, defendant abandoned the victim’s car,

broke into her house, and barricaded himself inside. The

next day, the police discovered him in the house, which led to

a nine-hour standoff during which the police initially tried

to get defendant to give himself up and later forcibly entered

the house and placed defendant under arrest. The trial

196 State v. Brown

court’s rulings admitting evidence regarding the standoff

are the subject of defendant’s second and third assignments

of error, which raise related but separate issues.

I. DEFENDANT’S SECOND

ASSIGNMENT OF ERROR

Before trial, defendant filed a motion in limine

arguing that any evidence regarding the standoff should be

limited under OEC 403. In addressing that motion, the trial

court issued what it described as a preliminary ruling; it

provided general guidelines for the parties to follow, and it

expressly advised defendant that he should object at trial

if the evidence of the standoff became either cumulative or

unduly prejudicial. At trial, defendant renewed his motion

in limine before any testimony regarding the standoff was

offered, and the trial court reaffirmed its pretrial ruling.

Three witnesses then testified about the standoff without

further objection. Some time after the trial had moved on to

other matters, defendant raised an OEC 403 objection to the

standoff testimony that the three witnesses previously had

offered. The trial court overruled that objection.

On appeal, defendant appears to assign error to

each of those rulings.2 In arguing that the trial court erred

in making those rulings, defendant treats the three rulings

as if they were synonymous. However, the record before the

trial court when it made the rulings and the substance of

those rulings differ. Beyond that, each ruling arose in a dif-

ferent procedural posture. For that reason, we discuss each

ruling separately. See Strawn v. Farmers Ins. Co., 350 Or

336, 347-50, 258 P3d 1199, adh’d to on recons, 350 Or 521,

256 P3d 100 (2011), cert den, 565 US 1177 (2012) (explaining

the need to focus on the specific arguments raised and the

precise evidentiary rulings); Hayes Oyster Co. v. Dulcich, 170

Or App 219, 224, 12 P3d 507 (2000) (same).

2

We say “appears” because defendant’s second assignment of error states

generically that “[t]he trial court erred when it admitted evidence of defendant’s

standoff with police before his arrest.” Although defendant’s assignment of error

does not identify the specific ruling or rulings that he contends were erroneous,

see ORAP 5.45(3) (requiring that each challenged ruling be specifically identi-

fied), the preservation section of his brief sets out the three evidentiary rulings

described briefly above. We assume that defendant challenges each of those

rulings.

Cite as 300 Or App 192 (2019) 197

A. Defendant’s Pretrial Motion in Limine

Before trial, defendant filed a motion in limine to

exclude evidence regarding the standoff. In making that

motion, defendant acknowledged that a limited amount of

evidence regarding the standoff was admissible to prove

his guilty knowledge. Specifically, defendant acknowledged

that the state could “confirm that * * * [defendant] did not

cooperate, that he refused to come out, [and that] they had

to forcibly remove him.” However, defendant argued that

anything other than that brief, schematic description of the

standoff would be unduly prejudicial and violate OEC 403.

The state, for its part, recognized that not all the evidence

regarding the standoff should be admitted, but it argued

that more information than defendant would admit was rel-

evant to prove defendant’s guilty knowledge.

As the parties’ discussion progressed, their posi-

tions shifted slightly. In part, that shift derived from the

fact that defendant did not know the specific evidence that

the state sought to admit. When he filed his pretrial motion

in limine, he was aware only of the people on the state’s wit-

ness list whom it intended to call, and he could only spec-

ulate about the evidence the state would seek to admit. In

part, the parties’ positions appear to have changed because

each side saw some value in the other’s arguments and mod-

ified their positions accordingly. Defendant, for example,

acknowledged that the officers could add that defendant

had been found in the victim’s home. The state, for its part,

offered to limit the number of witnesses to avoid focusing

too much on the standoff.

Despite some movement on both sides, the parties

were unable to agree on which of the events that occurred

during the nine-hour standoff should be admitted, nor could

they agree on the extent to which the witnesses could testify

about those events. Faced with that division, the trial court

announced what it described as a “preliminary ruling.” It

advised the parties that it had “concerns about the quan-

tum and character of the evidence at some point crossing

the line from being probative to being prejudicial.” It recog-

nized that the “evidence of flight and resisting apprehension

clearly is relevant to guilty knowledge.” It also recognized,

198 State v. Brown

however, that “[t]ypically cases involve fleeing police and

being apprehended. They don’t include [a] nine hour stand-

off, CERT Team, C.N.T. Team, C.I.C Team, tear gas, tasing,

[and] robots.” The court accordingly asked

“the State to make its way through this testimony quickly

and without cumulative coverage of things, without hyste-

ria, without officers testifying that there was a statement

to the effect that ‘I’ve never seen somebody not respond

to this much gas,’ or ‘I’ve never seen somebody go so long.’

That statement particularly, that’s a lot of facts not in evi-

dence that doesn’t [sic] have anything to do with this case,

so if there was an officer who was going to testify some-

thing to that effect, I think that goes beyond what would

be appropriate.”

In providing that guidance, the court acknowledged

that “this is a difficult [case] for the State to know where

the Court’s at on this.” The court then advised defense coun-

sel, “If objections are raised I may advise the State it’s time

to move on, that that topic has been covered if I feel that

it’s reaching a point of being cumulative or overly empha-

sizing beyond the probative value of the Defendant’s quote/

unquote guilty knowledge, evidence[d] by fleeing and resist-

ing arrest.”

Following that admonition, the parties discussed

briefly whether the amount of tear gas that defendant tol-

erated could be separated from the amount of illegal drugs

in his system, both of which potentially were relevant to his

mental and physical state when he subsequently confessed.

After defendant acknowledged that the state could men-

tion the amount of tear gas used, the court sought to clarify

defendant’s position. The trial court observed, “So they can

say he handled a lot of gas. I just don’t want them saying

of the 200 standoffs * * * this one [was] the worst.” Defense

counsel interjected, “Right.”

The court then restated its ruling:

“[H]ere’s my preliminary ruling. * * * I’m not excluding any-

thing at this point, but I’m giving the State fair warning

that if the State chooses to dwell on, repeat, overly empha-

size with their questioning, their length of time [that] they

have these CERT officers on the stand, they risk me decid-

ing okay, you’ve made your point, right? Guilty mind. He

Cite as 300 Or App 192 (2019) 199

was fleeing, he was resisting, point made. Anything beyond

that is going to be prejudicial.”

As the court’s statements made clear, it was not excluding

anything “at this point.” It wanted to see how the evidence

played out. It also made clear that it did not want the state

to dwell on the evidence and advised defendant that, “[i]f

objections are raised,” it would exclude cumulative or preju-

dicial testimony.

Defendant assigns error to that ruling, which the

trial court twice described as “preliminary.” Defendant’s

assignment of error faces a potential hurdle, however.

Following the Supreme Court’s lead, we have long held that

a party may not assign error to a preliminary evidentiary

ruling. Hayes, 170 Or App at 233-34; State v. Jackson, 68 Or

App 506, 512-13, 683 P2d 120, rev den, 297 Or 546, cert den,

469 US 983 (1984); accord State v. Adams, 296 Or 185, 189,

674 P2d 593 (1983). In Jackson, we explained that, when the

trial court’s ruling was anticipatory and merely revealed the

trial court’s inclinations, the ruling could not be challenged

on appeal; counsel needed to do something more to give rise

to a final appealable ruling, such as offer or object to specific

evidence at trial. 68 Or App at 513. Similarly, we explained

in Hayes that “ ‘the trial court’s subjective statement[s] of its

anticipated ruling[s],’ which the trial court expressly made

subject to further consideration at trial” were not final rul-

ings that could be challenged on appeal. 170 Or App at 233

(quoting Adams, 296 Or at 189 (bracketed material added in

Hayes)).

For the most part, the trial court’s ruling on defen-

dant’s pretrial motion in limine was, as the trial court described

it, preliminary. However, the trial court’s ruling was final in

one respect. It is clear from the trial court’s comments that

it rejected defendant’s efforts to limit evidence regarding the

standoff to his proposed schematic description of the event,

which we refer to as defendant’s proposed “stipulation.”3

3

The state argues that defendant never formally stipulated to the admission

of particular evidence. That may be correct. However, even if we assume that

defendant’s schematic, minimal description of the admissible evidence consti-

tuted a “stipulation,” the trial court did not err in declining to limit the state to

defendant’s stipulation for the reasons explained below.

200 State v. Brown

In that limited respect, the trial court’s ruling was final,

and we turn to that aspect of the trial court’s ruling.

On appeal, defendant argues that the trial court

abused its discretion in rejecting his proposed stipulation.

The validity of defendant’s argument turns initially on

whether the state’s proffered evidence was relevant to prove

more than the limited “stipulation” that defendant urged

was sufficient to prove the state’s case. See State v. Sparks,

336 Or 298, 309-12, 83 P3d 304, cert den, 543 US 893 (2004)

(concluding that, because post-mortem photographs were

relevant to prove more than the defendant stipulated, the

trial court did not err in declining to limit the state to the

defendant’s stipulation). We cannot say that the trial court

erred in declining to accept defendant’s stipulation.

The nature and extent of the actions that defendant

took to avoid capture bore on the extent to which the jury

could infer his guilty knowledge. See State v. McCormick,

280 Or 417, 420-21, 571 P2d 499 (1977) (explaining that the

question whether an inference of guilty knowledge should be

drawn from a defendant’s actions and the strength of that

inference will vary with the facts in each case). The trial

court reasonably could conclude that defendant’s abbrevi-

ated version of the facts would not give the jury a sufficient

evidentiary basis from which to draw (or not draw) an infer-

ence concerning his guilty knowledge. Moreover, the dura-

tion of the standoff and the physical and mental stresses

arising from the standoff bore on the validity of his confes-

sion following his arrest.4 To be sure, too great a focus on the

details of the standoff could become unduly prejudicial, as the

trial court recognized. However, we cannot say that the trial

court abused its discretion in declining to limit the evidence

4

There was no evidence before the trial court when it ruled on defendant’s

pretrial motion, only the representations of the parties. The state represented

(and defendant did not dispute) that, because defendant “does give an interview

* * * after his arrest, the jury would be able to consider whether or not he was

under the influence of any intoxicants and that sort of thing.” The trial court

discounted the state’s focus on defendant’s mental and physical state as raising

a separate issue. However, the effect of the prolonged standoff and defendant’s

extended exposure to the tear gas bore on his physical and mental state when

he confessed after his arrest. Defendant’s proposed stipulation was not sufficient

to provide the jury with a complete basis for assessing his mental and physical

state.

Cite as 300 Or App 192 (2019) 201

regarding the standoff to the abbreviated schematic version

of the events in defendant’s proposed stipulation.5

We accordingly affirm the one aspect of the trial

court’s ruling on defendant’s pretrial motion in limine that is

final. Beyond that, however, the trial court’s ruling was, as

the court twice described it, preliminary. That is, the trial

court declined to rule pretrial on the specific evidence of the

standoff that would and would not be admissible. Instead,

it identified general guidelines that the state should fol-

low in eliciting the evidence, and it advised defendant that,

“[i]f objections are raised,” it would exclude cumulative or

prejudicial testimony. That aspect of the trial court’s ruling

on his pretrial motion was not final, and his challenge to

that part of the trial court’s pretrial ruling is not properly

before us. See Hayes, 170 Or App at 233-34; Jackson, 68 Or

App at 513.

B. Midtrial Ruling

After the trial court ruled on defendant’s pretrial

motion in limine, the case proceeded to trial. The state called

witnesses who testified regarding defendant’s assaults on

August 9, August 22, and September 7. It then called three

witnesses to testify regarding the standoff: Officers King,

Sparling, and Chamberlin. King began his testimony by

stating that his “full-time job [was to] run the crisis nego-

tiation team for [the] Portland Police.” At that point, before

King had offered any specific evidence about the standoff,

defense counsel renewed his pretrial motion in limine:

5

In arguing that the trial court abused its discretion in not accepting his

proposed stipulation, defendant contends that, in light of the evidence that he

had fled on August 9 and 22, the evidence of his resistance on September 8 was

only marginally relevant to proving his guilty knowledge. That argument is

problematic for three reasons. First, when the trial court ruled on defendant’s

pretrial motion, there was no evidence (or representation) that defendant had

fled on August 9 and 22. Second, and more importantly, defendant’s flight on

August 9 and 22 permitted the jury to draw an inference of guilty knowledge

regarding his acts on those days, but his flight on August 9 and 22 provided no

basis for inferring guilty knowledge regarding his acts on September 7. Finally,

the defendant’s stipulation (even after he modified it to permit a limited reference

to the use of tear gas) did not provide a complete basis for the jury to assess his

mental and physical condition after the police removed him from the victim’s

house on September 8 and shortly before he confessed.

202 State v. Brown

“[DEFENSE COUNSEL]: Your Honor, I’m going to

take this moment just to object, to renew my original objec-

tion in limine regarding crisis negotiation.

“THE COURT: Understood.”

King then testified about the negotiations during

the standoff. He touched briefly on the length of the stand-

off, the officers’ attempts to make contact with defendant,

and their efforts to gain entry into the house. Sparling then

testified briefly about entering the home after using a robot

to determine defendant’s location. Finally, Chamberlin

described arresting defendant and taking him to the hos-

pital. After Chamberlin stated that defendant had been

taken to a hospital, the state asked, “[W]e heard that there

was a lot of tear gas deployed, is that the reason for him to

go to the hospital and be checked out?” Chamberlin said,

“Correct.” When asked whether defendant had tear gas on

him, Chamberlin replied, “He was literally covered in tear

gas. The white dust from the tear gas was just all over his

body.” During the officers’ testimony, defendant did not object

to any of King, Sparling, or Chamberlin’s specific testimony

about the standoff beyond renewing his pretrial motion in

limine at the beginning of King’s testimony.

Defendant assigns error to the trial court’s ruling

on his renewed pretrial motion. However, in stating “Under-

stood” in response to defendant’s renewed pretrial motion,

the trial court did no more than it had done in ruling on

the pretrial motion. The court reaffirmed the one aspect

of its ruling that was final—it was not going to limit the

state to defendant’s proposed stipulation. It also reaffirmed

what it had described as its preliminary ruling, which pro-

vided general advice to the parties about the way that the

state should present its evidence (move quickly through it

without focusing unduly on it) and during which the trial

court advised defendant that it would exclude cumulative or

unduly prejudicial testimony if objections were raised.

For the reasons explained above, the trial court did

not err in declining to limit the state to defendant’s proposed

stipulation—the one part of the trial court’s pretrial and

midtrial ruling that was final. Because defendant renewed

Cite as 300 Or App 192 (2019) 203

his pretrial motion before any of the three witnesses tes-

tified about the events that occurred at the standoff, the

remainder of the trial court’s reaffirmation of its pretrial

ruling was preliminary and cannot be challenged on appeal.

C. Defendant’s Later OEC 403 Objection

Chamberlin was the last of the three witnesses who

testified about the standoff. As noted, he began by describ-

ing his arrest of defendant in the house and explaining why

he took defendant to the hospital. That aspect of the stand-

off formed only a small part of Chamberlin’s testimony. The

remainder (and the majority) of Chamberlin’s testimony

focused on his interview with defendant the following day

at the police station. Chamberlin recounted defendant’s

description of his daily drug use during that interview.

He explained that defendant told him that he and the vic-

tim had separated because of his drug use, that defendant

believed that the victim had been cheating on him, and that

defendant said that “if he was sober, he would not have done

the things that he did in his relationship with [the victim].”

Chamberlin also recounted defendant’s version of the events

on August 9, August 22, and September 7, and Chamberlin

explained that, when asked about the victim’s version of the

events, defendant said that he did not remember much of

what the victim reported. Finally, Chamberlin read a letter

of apology that defendant had written the victim at the police

station. Defense counsel then cross-examined Chamberlin,

and the state examined him on redirect.

After Chamberlin finished his testimony and was

excused, the parties discussed with the trial court how to

handle a juror’s use of a cell phone during trial. Defendant

then raised a question regarding medical records that had

come to light for the first time during trial and argued that

those records should be excluded and a mistrial granted

because of the records’ late appearance. After the trial court

ruled against defendant on those matters (approximately 43

transcript pages after Chamberlin testified about arresting

defendant during the standoff and why he took him to the

hospital), defendant raised an OEC 403 “objection to the

[specific] evidence about the SWAT team standoff.” He told

the trial court:

204 State v. Brown

“There was excessive testimony about robots being deployed,

tear gas being broken into the home, explosives blowing

the door off. And then to sort of cap it all off, Detective

Chamberlain said exactly what I was afraid he would,

which is that he had never seen somebody handle that

much gas before.”

Defendant explained that, in his view, the three

witnesses’ testimony had “cross[ed] a line into unfair preju-

dice from 403 balancing.” The state offered a different view

of the evidence. It explained that the officers’ testimony had

been restrained and touched only briefly on the various

ways in which the officers had tried to make contact with

defendant before entering the home. After considering the

parties’ arguments, the trial court ruled, “I do not find that

the amount of testimony was prejudicial or cumulative to

the point of denying a fair trial.”

The state argues that the trial court’s ruling is cor-

rect on the merits. There is, however, a more fundamental

problem with defendant’s objection. It came too late. See

OEC 103(1)(a) (requiring a timely objection or motion to

strike). As the Supreme Court explained in State v. Keller,

315 Or 273, 283, 844 P2d 195 (1993):

“In order for a ruling on evidence to be considered as

an assignment of error on appeal, a timely objection to, or

motion to strike, the evidence must appear on the record.

OEC 103(1)(a). An objection is ‘timely’ if it is made as soon

as its applicability to the offered evidence is known to the

opponent of the evidence. An objection need not necessarily

be made to the first question in a series of foundation ques-

tions, because in that situation the court often will have no

basis properly to assess the admissibility of the evidence.”

(Footnote and citations omitted.)

In announcing its preliminary ruling on defen-

dant’s pretrial motion in limine, the trial court advised

defendant that it would exclude specific evidence that was

either cumulative or unduly prejudicial if objections were

raised. Defendant, however, did not do so. He waited until

long after the three witnesses had finished their testimony

and been excused to object to the specific evidence they

offered. A timely objection permits a trial court to correct

Cite as 300 Or App 192 (2019) 205

any error. By waiting until long after the specific evidence

had been admitted, defendant waived any objection to it. See

Blanton v. Union Pacific Railroad Co., 289 Or 617, 623, 616

P2d 477 (1980) (“Normally, if improper evidence is offered,

objection must be made at the time of the offer or it is deemed

waived.”).

We recognize that, early on, defendant raised a

concern that evidence regarding the standoff could become

either cumulative or unduly prejudicial. However, at the

two points during the litigation when defendant raised that

concern (pretrial and at the beginning of King’s testimony),

no specific evidence regarding the standoff was before the

trial court, and the court made, for the most part, only a

preliminary ruling. As the trial court explained, it was not

excluding any evidence “at this point,” and it advised the

parties that, if defendant objected, it would exclude evidence

if it became either cumulative or too prejudicial. Defendant,

however, did not raise any objection to the specific evidence

of the standoff that the state’s three witnesses offered until

long after those witnesses had been excused. As a result,

defendant waived any objection he might have had to their

specific testimony.

II. DEFENDANT’S THIRD

ASSIGNMENT OF ERROR

After defense counsel unsuccessfully moved under

OEC 403 to exclude the specific evidence that the state had

offered regarding the standoff, the trial court asked coun-

sel if he wished to make any other motion. Defense counsel

stated:

“I guess I should make a conclusion from what I just said

about the—what I think was an excessive [amount of] evi-

dence regarding the standoff, and that being unfairly prej-

udicial, that now that that’s been heard by the jury, this is

a new basis for a mistrial request.”

The trial court ruled: “Okay. And so, [defense counsel], I am

denying that motion as well.”

On appeal, defendant assigns error to that ruling.

The state responds that defendant’s mistrial motion was

untimely and that, in any event, the trial court did not

206 State v. Brown

abuse its discretion in denying the motion. We agree with

the state’s first argument and do not reach the merits of

the trial court’s ruling. The Supreme Court has long recog-

nized that, “[t]o preserve error, a motion for a mistrial must

be timely,” and that a motion is “timely if it is made when

the allegedly objectionable statements were made.” State v.

Walton, 311 Or 223, 248, 809 P2d 81 (1991). There are excep-

tions to that rule. For instance, “ ‘[w]here it is clear that the

trial court understands that the defendant intends to seek

a mistrial, and it responds by giving a curative instruction,

the need for an immediate mistrial motion is obviated.’ ”

State v. Cox, 272 Or App 390, 406, 359 P3d 257 (2015) (quot-

ing State v. Veatch, 223 Or App 444, 453, 196 P3d 45 (2008)

(emphasis in Veatch)).

In this case, defendant did not make an immedi-

ate motion to exclude the witnesses’ specific testimony

under OEC 403, much less a motion for a mistrial at that

time. Much of the testimony that he viewed as objectionable

evidence came from King, but he waited until after King,

Sparling, and Chamberlin had testified and been excused

before moving for a mistrial based on King’s testimony. The

other evidence he found objectionable was Chamberlin’s (and

perhaps Sparling’s) testimony regarding tear gas. However,

defendant’s failure to raise a timely objection both waived

his evidentiary objection and resulted in his mistrial motion

being untimely. See Blanton, 289 Or at 623 (mistrial motion

untimely in the absence of a timely evidentiary objection).

We accordingly affirm the rulings challenged in defen-

dant’s second and third assignments of error. As noted above,

we have considered defendant’s other assignments of error

and reject them without further discussion.

Affirmed.